California court affirms communities’ right to fight permits for dirty power plants

A California state judge has affirmed the constitutional right of residents concerned about air and climate pollution to challenge power plant siting decisions in their local Superior Court.

In 2013 Earthjustice, Communities for a Better Environment [CBE] and the Center for Biological Diversity filed a lawsuit challenging the constitutionality of a 2001 law limiting judicial review of the California Energy Commission’s power-plant approvals to the California Supreme Court. Wednesday’s decision in the Alameda County Superior Court sides with the groups, agreeing that Superior Courts have jurisdiction to hear appeals of the Energy Commission’s licensing decisions.

“While primarily a health and climate case, this was also an access to justice case,” said Stacey Geis, managing attorney for Earthjustice’s California regional office. “It is crucial that fossil fuel companies and utilities in California can no longer sidestep judicial review for huge fossil fuel projects, which could lock us into decades of dirty energy dependence. There are both environmental and economic clean energy alternatives.”

Californians have become increasingly concerned about the construction of more gas power plants. These facilities are among the largest new stationary sources of air pollution in the state and commit California to an energy future based on fossil fuels, including gas obtained by fracking. “Natural gas” used for power generation is composed primarily of the super-pollutant methane, which has 87 times the warming effect of carbon dioxide over a 20-year period.

The California legislature established the Energy Commission in 1974 to serve in part as a one-stop permitting authority for thermal power plants 50 megawatts or higher. Since the 1990s plants built by independent power producers only require a license from the Commission, which has a long history of approving natural gas power plants whenever an energy company asks — even in the face of strong public opposition.

Communities and advocates have been limited to appealing those decisions in the California Supreme Court. The Supreme Court has not taken even one direct appeal of a licensing decision since 2001.

“Over the last two decades, CBE has had to fight new polluting power plants in our communities again and again,” said CBE legal director Shana Lazerow. “Based on our experience, the Energy Commission is completely confident that it need never justify its decisions in any court of law. This decision ends the unconstitutional bar to Superior Court review, opening the door for communities who would have to pay the price with their health and safety.”

“This decision ensures that California communities have a fair shot at protecting themselves from dirty and dangerous fossil fuel power plants,” said Maya Golden-Krasner, deputy director of the Center for Biological Diversity’s Climate Law Institute. “Gas plants don’t belong near homes and schools, and they have no place in California’s clean energy future.”

For more on this matter, see: “No new natural gas plants for California?” here.